Judgment ( 1. ) APPELLANT has challenged his conviction and order of sentence passed by Third Additional Sessions Judge, Damoh in s. T. No. 145/93 decided on 30. 11. 94. ( 2. ) APPELLANT has been convicted under Section 304-B of ipc for causing dowry death of his wife and sentenced to rigorous imprisonment for seven years by the impugned judgment. ( 3. ) ACCORDING to prosecution, deceased Maya Bai @ neema Bai (hereinafter referred to as deceased) was married to the appellant 4-5 years back and she died of burn injuries within seven years of her marriage at village Pati (Kulwa ). Appellant used to demand Rs. 2000/- as dowry from the parents of the deceased and also subjected her to cruelty and harassment in order to fulfil his demand for dowry. As a result of cruelty and harrasment meted out to the deceased, she burnt herself by pouring kerosene oil over her body on 24. 6. 93 about 4-5 P. M. at the house of appellant at village Pati (Kulwa) and succumbed to her burn injuries in the hospital on 25. 6. 93 at 11. 45 A. M. The intimation of her death was sent to Kotwali, Damoh, whereupon merg intimation was recorded and merg inquest report was prepared. Meanwhile the occurrence was also reported at Police Station Nohta by Imrat, the brother of the appellant, whereupon the deceased was sent to the hospital for treatment; upon her death, the dead body of the deceased was sent for postmortem examination. After merg enquiry, offence was registered against the appellant under Section 304-B, 306, 498-A of IPC and Section 3/4 of Dowry Prohibition Act and was investigated. After due investigation, appellant was prosecuted and was put to trial for the offence under Section 304-B of IPC. ( 4. ) APPELLANT abjured the guilt and pleaded false implication at the instance of his in-laws. ( 5. ) LEARNED Additional Sessions Judge, after trial and upon appreciation of the evidence adduced in the case, found the appellant guilty under Section 304-B of IPC for causing dowry death of his wife, Maya Bai @ Neema Bai, convicted and sentenced him as aforesaid by the impugned judgment, which has been challenged in this appeal. ( 6. ) ARGUMENTS of both the sides were heard. Record of the lower court perused. ( 7. ( 6. ) ARGUMENTS of both the sides were heard. Record of the lower court perused. ( 7. ) IT was not disputed that deceased Maya Bai was married to the appellant 4-5 years back prior to the occurrence and she died of burn injuries at village Pati (Kulwa) within seven years of her marriage. It is also born out from the testimony of Chandra rani (P. W-6), Mangal Singh (P. W-7), the mother and father of the deceased and her brother Charanlal (P. W-8) that deceased Maya bai was married to the appellant 4-5 years back prior to the occurrence. It is also reflected from the testimony of dr. J. P. Pansari (P. W-4) that deceased Maya Bai was brought to the District Hospital, Damoh with burn injuries all over her body on 25. 6. 93, where she succumbed to her burn injuries. It is also evident from the testimony of autopsy surgeon Dr. M. K. Malhotra (P. W-12) that deceased Maya Bai had 79% burns over her body with the smell of kerosene oil present and she died as a result of shock due to extensive antemortem burns on her body. It was thus clearly evident that deceased Maya Bai died of burn injuries within seven years of her marriage. ( 8. ) LEARNED counsel for the appellant, however, submitted that there was no cogent evidence on record that deceased Maya bai committed suicide or she was subjected to cruelty or harassment in connection with the demand of dowry soon before her death. Learned counsel for the appellant strenuously urged that the trial court gravely erred in placing implicit reliance on incoherent and unreliable testimony of the related witnesses, which suffered from material omissions and contradictions, and failed to consider that it was a case of accidental burn. Learned counsel for the appellant also submitted that the trial court failed to appreciate that the story of demand for dowry was an after thought, fabricated and developed 48 days after the occurrence and the appellant was erroneously convicted without there being any dependable evidence on record that any cruelty or harassment was meted out to the deceased in connection with the demand for dowry. ( 9. ( 9. ) LEARNED counsel for the State, on the other hand, justified and supported the conviction of the appellant and submitted that the deceased was living with the appellant at the time of occurrence, and she was not immediately taken to the hospital and even the Police and the parents were not immediately informed with the result that her dying declaration could not be recorded because of her serious condition. Learned counsel for the state also submitted that in the aforesaid circumstance when deceased died an unnatural death as a result of burns within seven years of her marriage, the burden was on the accused to explain under Section 106 of the Evidence Act as to how the deceased sustained burn injuries. Reliance was also placed in this behalf on the Apex Court decisions rendered in the case of Trimukh Maroti Kirkan Vs. State of Maharashtra reported in (2006)10 supreme Court Cases 681 and State of Rajasthan Vs. Parthu reported in AIR 2008 Supreme Court page 10. ( 10. ) NOW it is well settled, as enunciated by the Apex Court from time to time in various decisions reported in AIR 2005 supreme Court page 785 (Kamesh Panjiyar alias Kamlesh Panjiyar Vs. State of Bihar), 2008 AIR SCW page 8241 (Baldev Singh Vs. State of Punjab) and 2009 AIR SCW page 536 (Prem Kanwar Vs. State of Rajasthan) that in order to attract Section 304-B of IPC following ingredients are to be satisfied:- (i) The death of a woman must have been caused by burns or bodily injury or otherwise than under normal circumstances. (ii) Such death must have occurred within 7 years of the marriage. (iii) Soon before her death, the woman must have been subjected to cruelty or harassment by her husband or any relative of her husband; and (iv) such cruelty or harassment must be in connection with the demand of dowry. ( 11. ) IN the instant case, there is no dying declaration of the deceased. The conviction of the appellant is based on the testimony of the mother, father, brother and sister-in-law of the deceased, namely, Chandra Rani (P. W-6), Mangal Singh (P. W-7), charanlal (P. W-8) and Ashokrani (P. W-9 ). According to Chandra rani (P. W-8), deceased Maya Bai used to come to her place from her matrimonial home twice a year and tell her that appellant asked her to bring Rs. According to Chandra rani (P. W-8), deceased Maya Bai used to come to her place from her matrimonial home twice a year and tell her that appellant asked her to bring Rs. 2000/- as dowry and beat her on her failure to do so. According to this witness, ever since his marriage, appellant used to make a demand for Rs. 2000/- and used to beat the deceased in order to fulfil his demand. However, she was contradicted in this behalf in her cross-examination with her Police statement (Ex. D-1) as to complete omission of these facts therein. She was also contradicted with the other portion of her Police statement in this behalf. ( 12. ) SIMILARLY, P. W-7 Mangal Singh, the father of the deceased, also deposed in his evidence that whenever deceased used to come to her parental house, she informed the family members that appellant demanded Rs. 2000/-as dowry and used to beat her. P. W-7 Mangal Singh was also confronted in this behalf with his police statement (Ex. D-2) as to the omission of said facts in his police statement. He was also contradicted with other portion of his statement (Ex. D-2) in this behalf recorded by the police. ( 13. ) EVEN P. W-8 Charanlal and his wife Ashokrani (P. W-9), the brother and sister-in-law of the deceased, were also contradicted and confronted with their police statements (Ex. D-3 and D-4 respectively) with regard to the omission of the statements made in their deposition that deceased Maya Bai used to complain that appellant asked her to bring Rs. 2000/- from her parents and beat her on failure to do so. P. W-9 Ashokrani was aptly contradicted in this behalf with her police statement (Ex. D-4)wherein she stated that after marriage deceased used to come to her parents three-four times in the year, but she never complained to her about any grievance or maltreatment from the appellant. ( 14. ) IN fact, upon close and careful scrutiny of the entire evidence of the aforesaid related witnesses, it is apparent that their version that the deceased used to complain about physical assault or marpit by the appellant in order to fulfil his demand of Rs. 2000/-as dowry, could not be believed in view of the complete omision of these facts in their respective police statements. 2000/-as dowry, could not be believed in view of the complete omision of these facts in their respective police statements. Had it been true, they would have given similar statement to Police as well that deceased used to complain that appellant subjected her to physical assault or marpeet in order to fulfil his demand for Rs. 2000/- as dowry. ( 15. ) IN view of material omissions and contradictions appearing in the evidence of the aforesaid related witnesses with their police statements with regard to other part of their deposition that appellant had come to them two or three days prior to the death of Maya Bai to ask for Rs. 2000/- as dowry and on their refusal to meet his demand, appellant threatened them to face dire consequences, is also not found to be trustworthy. According to mangal Singh (P. W-7), the father of the deceased, when he refused to accede to appellants demand for Rs. 2000/-, appellant had threatened that he would not see his daughter alive, but again there is a complete omission of this fact in his police statement (Ex. D-2) with which he was confronted. Obviously such statement appears to be an improvement on the part of Mangal Singh (P. W-7 ). The statement of P. W-9 Ashokrani is also inconsistent in this behalf. She said that appellant had come to ask for money to their place a month prior to the death of Maya Bai, whereas according to other witnesses, appellant had come to the parents of the deceased 2-3 days prior to her death. The statement of ashokrani (P. W-9) that appellant got angry on non-fulfilment of his demand for money also stands contradicted with the statement of mother of the deceased Chandra Rani (P. W-6), who said that when appellant went back on his last visit, he was quite happy. Needless to emphasize that such a statement of Chandra Rani (P. W-6) also contradicts the version of her husband Mangal Singh (P. W-7), that appellant while leaving his place, had threatened him that he would not see his daughter alive. ( 16. ) THUS, the evidence of the aforesaid related witnesses from the parental side of the deceased that appellant had come to them to ask for Rs. ( 16. ) THUS, the evidence of the aforesaid related witnesses from the parental side of the deceased that appellant had come to them to ask for Rs. 2000/- as dowry soon before her death is also not found to be credible or trustworthy, particularly when mangal Singh (P. W-7), the father of the deceased, categorically admitted in his evidence that there was no custom of giving or taking dowry in their community. Besides, it is also pertinent to note that none from the parental side of the deceased ever complained to the Panchayat or Police against the alleged demand of dowry or maltreatment meted out to the deceased by the appellant. In view of these facts, the submission of learned counsel for the appellant that the story of demand of dowry was invented and developed subsequently 48 days after the death of the deceased, seems to have some substance. ( 17. ) EVEN if it is assumed for arguments sake that 2-3 days prior to the death of Maya Bai appellant came to her parents to ask for Rs. 2000/-, there is no such evidence on record that the appellant thereafter subjected the deceased to cruelty or harassment. Needless to repeat that the evidence of the related witnesses (P. W-6 to P. W-9), regarding previous complaints made by the deceased about her maltreatment by the appellant in connection with the demand of Rs. 2000/-, as discussed above, is not found to be reliable and trustworthy. Had there been some reliable or dependable evidence of cruelty or harassment meted out to the deceased, the alleged demand of Rs. 2000/-from the parents of the deceased could have some significance for attracting Section 304-B of IPC , but in the instant case the position is otherwise. The statements made by all the four related witnesses from the parental side of the deceased, in this behalf are clearly found to be tainted and emerge as concocted being an after thought and lack credence so as to be acted upon. The statements made by all the four related witnesses from the parental side of the deceased, in this behalf are clearly found to be tainted and emerge as concocted being an after thought and lack credence so as to be acted upon. Although it is not unnatural for the parents and the family members of the deceased under the grief of her death to make such allegations and treat the husband of the deceased as culprit, but the fact remains that there should be some reliable and dependable evidence to establish that the deceased was subjected to physical assault, cruelty or harassment in connection with the demand for dowry. ( 18. ) LEARNED counsel for the state submitted that the smell of kerosene was found present on the body of deceased and there was delay in taking her to the hospital and to the police, as also and in informing the parents of deceased, which is suggestive of culpability of the appellant, but such things may only create suspicion and suspicion howsoever strong can not take place of legal proof. ( 19. ) LEARNED counsel for the State also submitted that the presence of smell of kerosene oil over the body of the deceased was also indicative of the fact that she committed suicide; it was, therefore, incumbent upon the appellant to explain how his deceased wife, had burnt herself. Learned counsel for the appellant on the other hand, pointed out that there was a report of the accidental burn of the deceased by the brother of the appellant at Police Station, Nohta on 25. 6. 93, which was recorded by asi Mohd Haneef (P. W-13) in Rojnamcha at Sanha No. 869 vide ex. P-10, which was sufficient explanation on behalf of the appellant of the accidental burn of the deceased, which remained virtually uncontroverted. It was also submitted by him that Dr. J. P. Pansari (P. W-4) also opined that even if the kerosene oil falls accidentally, the smell of kerosene oil can be present over the body. ( 20. P-10, which was sufficient explanation on behalf of the appellant of the accidental burn of the deceased, which remained virtually uncontroverted. It was also submitted by him that Dr. J. P. Pansari (P. W-4) also opined that even if the kerosene oil falls accidentally, the smell of kerosene oil can be present over the body. ( 20. ) BE that as it may, as mentioned hereinabove, in a case under Section 304-B, when a woman dies within seven years of her marriage by burns or bodily injury or otherwise than under normal circumstance, it must be proved that she was subjected to cruelty or harassment by her husband in connection with the demand of dowry soon before her death. In the instant case, however, there is no such cogent, convincing or reliable evidence that the deceased was subjected to cruelty or harassment in connection with demand of dowry or otherwise. In absence of cogent evidence of cruelty or harassment meted out to the deceased, no presumption under Section 113 (B) of the Evidence act or even Section 113 (A) of the said Act can be drawn. ( 21. ) IN view of the foregoing discussion, no offence under section 304-B of IPC, or even a lesser offence under Section 306 or section 498-A of IPC was proved against the appellant beyond reasonable doubt. The conviction of the appellant under Section 304-B of IPC, therefore, cannot be sustained. ( 22. ) APPEAL is, therefore, allowed. The conviction of the appellant and sentence awarded to him under Section 304-B of IPC are set aside. Appellant is acquitted of the charge. Appellant is on bail. His bail bonds shall stand discharged.